Attorney General Michael Mukasey on Wednesday launched a full-scale criminal investigation into the actions of CIA personnel who destroyed videotapes of detainee interrogations.
"Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter," Mukasey said in a statement.
Mukasey also designated a federal prosecutor from Connecticut -- First Assistant U.S. Attorney John Durham -- to oversee the FBI's investigation, because U.S. Attorney Chuck Rosenberg of the Eastern District of Virginia, where jurisdiction over the CIA lies, has recused himself.
In his statement, Mukasey offered no explanation for Rosenberg's recusal. Last year, however, Rosenberg wrote a letter to U.S. District Judge Leonie Brinkema, who had presided over the Zacarias Moussaoui case, acknowledging that the CIA had made "factual errors" when it previously reported that it had no videotapes of detainee interrogations.
Mukasey noted that the criminal investigation may uncover "a potential felony or misdemeanor violation," but he does not guarantee that "criminal charges will necessarily follow."
The attorney general's orders come a month after The New York Times reported that the CIA had destroyed the tapes and CIA Director Michael Hayden said that the agency had acted "in line with the law." Hayden, in a statement to employees on Dec. 7, also said the tapes posed a "serious security risk" that could result in "retaliation" against CIA officials and their families.
The Times reported that the decision to destroy the tapes was taken by Jose Rodriguez Jr., then-head of the Directorate of Operations, the agency's clandestine service.
One legal scholar lauds Mukasey's move as a "productive and healthy development." Carl Tobias, law professor at the University of Richmond, says, "It's a good thing that Mukasey is taking this seriously and moving this along."
The FBI and CIA have already wrangled over the interrogations and continued detention of terrorism suspects at the Guantanamo Bay, Cuba, naval base.
"Maybe some tension between the FBI and CIA will be a positive thing, at least in this context, and maybe it'll give more credibility to the work," Tobias says.
Overseeing the investigation will be Durham, a widely respected prosecutor in the New England law enforcement community. Then-Attorney General Janet Reno appointed Durham in the late 1990s to investigate allegations that FBI agents and police officers in Boston were in league with the mob.
"Through the 1980s and '90s, Durham prosecuted or supervised every organized crime case in Connecticut," says a Durham profile in the Hartford Courant. "His team contributed critical evidence to the conviction in New York of Gambino crime family boss John Gotti."
Two lawyers representing Guantanamo Bay detainees before the U.S. District Court in Washington predict that Mukasey's announcement will have no bearing on their pending lawsuits.
Last month the CIA tapes were the focus of a hearing before U.S. District Judge Henry Kennedy Jr., who considered a motion by David Remes, a lawyer who represents a group of Yemeni detainees held at Guantanamo, to inquire into whether the government neglected its obligation to preserve evidence.
Kennedy, who took the matter under advisement, suggested that he was reluctant to follow through on the motion because the Justice Department had already announced its own investigation.
"It doesn't affect our cases much one way or the other, because our concerns go beyond two videotapes to the government's handling of evidence relating to our clients generally," says Remes of Covington & Burling.
Remes continues, "The initiation of this investigation doesn't lessen the need to determine whether the government has violated the court's orders to preserve evidence in our cases. Those orders cover more than these two videotapes. The fact that the government destroyed these two videotapes raises more general concerns about its handling of evidence covered by the court's orders in our cases."
Charles Carpenter of Pepper Hamilton, a lawyer for another Guantanamo Bay detainee, has asked U.S. District Judge Richard Roberts for a hearing into whether the government complied with an order to preserve evidence.
Carpenter says the criminal investigation is not enough for his client. "It's not an adequate substitute," he says. "We want to know the truth, and we want to know whether evidence was destroyed in violation of the court order. My client's primary interest isn't in enforcement of criminal laws of the United States. His interest is in getting a fair trial."
In a statement issued Wednesday, Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, said Mukasey's move reinforces the need for Congress to protect its constitutional oversight role. Leahy said the appointment of an outside prosecutor "shows that many of us were right to be concerned with possible obstruction of justice and obstruction of Congress."
